The important events were the realisation that the law should make provision for people who are in same-sex relationship
INTERVIEW WITH MICHAEL KIRBY – TRANSCRIPT MICHAEL KIRBY The important events were the realisation that the law should make provision for people who are in same-sex relationships and the responsibility for doing that rests primarily under the Australian Constitution with the Federal Parliament. But the Federal Parliament was dragging its heels and so the legislature in the Australian Capital Territory (ACT) enacted a law, which purported to give under ACT law a right to be married in the ACT. When that happened the new Federal Government, the Abbott Government challenged that law in the High Court and the High Court heard the challenge very quickly and decided very rapidly and unanimously held that the law has to be a Federal law, it can’t be an ACT law. The attempt of the ACT legislature to provide for it was struck down as unconstitutional under the Australian Constitution. The issue that I’m addressing is a technical one, it isn’t as such as to whether we should have marriage equality or same-sex marriage or not, that’s a matter on which people can have different points of view. But Michael Whincop who was the professor at Griffith University whom we are celebrating in my lecture was a technical lawyer, a very skilful technical lawyer. So the issue I am addressing is whether or not the decision of the High Court of Australia in the case between the Federal Government and the ACT illustrates the fact that the High Court has rejected so-called originalism in the interpretation of the Constitution. In the case of the Australian Constitution it was written and came into effect in the year 1900 and therefore originalism would require that you give the meaning of the word marriage in the Australian Constitution, the meaning it would have held in 1900. In that time it would not have included the possibility of same-sex marriage because at that time same-sex sexual relations were uniformly criminal and when the High Court looked at the issue it concluded and said very specifically that this was a matter where the Federal Parliament had the power, only the Federal Parliament had the power and therefore it appeared to be rejecting the notion that you have to go back to what marriage in the constitution meant in 1900 and so that, from a lawyer’s point of view is the interesting question about the way in which the High Court approached the matter. There are some of the Justices of the High Court over the years who have embraced various forms of originalism. The given reason for going to what was meant in 1900 is that it gives a kind of anchor for the Constitution and if you can find out what it meant in 1900 then you have a definite starting point and it makes it, in a sense, more objective to find what it meant and what it will always mean unless it’s changed in its text. That’s the argument that’s put forward by proponents of originalism such as Justice Scalia of the Supreme Court of the United States.
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The problem that I myself see with originalism is that it appears to defy the very nature of a Constitution because a Constitution has to work from decade to decade, century to century. And the Australian Constitution is a very difficult Constitution to change and that being the case unless were not going to be able to cope with all the changes that are happening in society, the very nature of a Constitution seems to me to be a document that will allow the Constitution to form around the problems have to be solved from age to age. The Federal Government has indicated that it intends to take some from of sampling or opinion from the Australian People. Of course in May 2015 the People of Ireland in a referendum voted strongly in favour of permitting samesex marriage, they did so by a vote of 62% majority in favour of permitting that. Ireland had to do that because there were provisions in its Constitution, which were interpreted to forbid same-sex marriage, and therefore they had to change the text of the constitution in order to permit it. We don’t have that requirement in Australia because the High Court in the case between the Commonwealth and the ACT held specifically and emphatically and unanimously that in Australia the Federal Parliament has the power and only the Federal Parliament has the power to do it. So we don’t have to go back to consult the people and generally in Australia we solve problems by Parliamentary vote not by a vote with the People and my own view would be, that is the correct way for the matter to be progressed, to have it decided by a vote of the Federal Parliament one way or the other. That is the way in which, so long as you have the Constitutional Power, which we do in the case of same-sex marriage, we decide contested matters through the representatives of the People in the Federal Parliament. If there is a will to achieve marriage equality in Australia, the appropriate way is for legislation to be brought into the parliament and voted upon. A number of bills have been proposed by an independent Senator, one by the leader of the Opposition, one by Mr Warren Entsch and Ms Gambaro from Qld from the Coalition parties. The normal way that would be progressed would be by some endeavour to get reconciliation between the texts and then a vote in the Federal Parliament. When that vote will be taken and what it will be and whether it will require a number of votes remains to be seen. But if you look at the long journey of history on this matter and if you look at what has already happened in countries like Australia overseas, uniformly they have moved to permit people in same-sex relationships to have the benefit of marriage and in a secular Constitution such as Australia has, I have no doubt that will happen. But when it will happen, that remains to be seen.
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